Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Forced Labour Convention, 1930 (No. 29) - Democratic Republic of the Congo (Ratification: 1960)

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

The Committee notes the concise report provided by the Government on 9 June 2011 and also the discussion which took place within the Conference Committee on the Application of Standards concerning the application of the Convention by the Democratic Republic of the Congo. It also notes the observations from the Confederation of Trade Unions of Congo (CSC) received at the Office on 21 September and forwarded to the Government on 26 September 2011.

Articles 1(1) and 2(1) of the Convention. Forced labour and sexual slavery in the context of armed conflict. In its previous observation the Committee referred to the various reports of the Office of the United Nations High Commissioner for Human Rights and of the Special Rapporteurs on the situation in the Democratic Republic of the Congo. These reports underlined the gravity of the human rights situation in the country – both in the zones where hostilities have resumed and in areas that have not been affected by the conflict – and referred to violations committed by the state security forces and other armed groups, including cases of forced labour and sexual slavery. In the second joint report of seven United Nations experts on the situation in the Democratic Republic of the Congo, the experts noted that the mines in the Kivu provinces continued to be exploited by armed groups, especially the Armed Forces of the Democratic Republic of the Congo (FARDC) and expressed their concern at “reports that civilians are still subjected to forced labour, extortion and illegal taxation, and that sexual exploitation of women and girls is rife in these mining areas”. This report also emphasize that “women and girls have been abducted and held as sexual slaves both by FARDC members and other armed actors, and have been subject to collective rapes for weeks and months, often accompanied by additional atrocities” (A/HRC/13/63 of 8 March 2010).

In its report, received in June 2011, the Government indicates that it has noted the Committee’s observations and that urgent measures are being taken to put a stop to these serious violations. It adds that a bill for the eradication of forced labour is under examination in Parliament.

The Committee notes that the Conference Committee on the Application of Standards, further to its examination of this case, “noted with concern the information provided which bore witness to the gravity of the situation and the climate of violence, insecurity and the violation of human rights which prevailed in the country, especially in North Kivu. This information confirmed that cases of abduction of women and children, with a view to their use as sexual slaves and the exaction of forced labour, particularly in the form of domestic work, were frequent and continued to occur. Moreover, in mines, the workers were hostages of conflicts for the exploitation of natural resources and victims of exploitation and abusive practices, some of which amounted to forced labour. The Committee observed that failure to comply with the rule of law, legal insecurity, the climate of impunity and the difficulties faced by victims in gaining access to justice favoured all of these practices. (...) The Committee (...) appealed to the Government to take urgent and concerted measures to bring such violations to an immediate end (...)”.

The Committee regrets that, further to this discussion, the Government has neither supplied detailed information on the measures taken to put a stop to these violations, nor replied to the observations from the CSC, which confirm the practices of abduction of women and girls and, to a lesser degree, of men and boys with a view to being used for forced labour and sexual slavery by the armed groups. Elderly women are also being abducted for domestic work. The trade union confederation refers to specific cases of abductions and indicates that the worst affected areas are Walikale, Rutshuru, Masisi and North Kivu.

In view of the gravity of the situation described above, the Committee urges the Government to take the necessary measures, as a matter of urgency, to put an immediate stop to these practices which constitute a serious violation of the Convention and to guarantee a climate of stability and legal security in which recourse to forced labour cannot be legitimized or go unpunished. The Government is also requested to provide information on the prosecution proceedings instituted against perpetrators and the criminal penalties imposed therein.

Article 25. Criminal penalties. In its previous comments the Committee noted that, under section 323 of the Labour Code, any infringement of section 2.3, which prohibits the use of forced or compulsory labour, shall incur the penalty of a maximum of six months’ imprisonment and/or a fine, without prejudice to criminal legislation laying down more severe penalties. Emphasizing that the penalties laid down in the Labour Code do not constitute an effective deterrent, the Committee asked the Government to specify the penal provisions which prohibit and sanctions recourse to forced labour. The Committee notes the Government’s confirmation that the Penal Code of 1940 (as amended up to 2006) does not establish any penalties for persons who impose forced labour. The Government explains that the bill for the eradication of forced labour which is under examination in Parliament provides for effective criminal penalties. The Committee trusts that the Government will be in a position to announce in its next report the adoption of the Act for the eradication of forced labour and that the latter will establish criminal penalties that constitute an effective deterrent, in accordance with Article 25 of the Convention.

Repeal of legislation allowing for the exaction of work for national development purposes, as a means of levying taxes and by persons in preventive detention. For a number of years the Committee has been asking the Government to amend or repeal the following legislative texts and regulations, which are contrary to the Convention:

• – Act No. 76-011 of 21 May 1976 concerning national development efforts and its implementing order, Departmental Order No. 00748/BCE/AGRI/76 of 11 June 1976 concerning the performance of civic tasks in the context of the national food production programme: these legal texts, which aim to increase productivity in all sectors of national life, require, subject to criminal penalties, every able-bodied adult person who is not already considered to be making his contribution by reason of his employment (political representatives, employees and apprentices, public servants, traders, members of the liberal professions, the clergy, students and pupils) to carry out agricultural and other development work as decided by the Government;
• – Legislative Ordinance No. 71/087 of 14 September 1971 concerning the minimum personal contribution, sections 18 to 21 which provide for imprisonment involving compulsory labour, upon decision of the chief of the local community or the area commissioner, of taxpayers who have defaulted on their minimum personal contributions;
• – Ordinance No. 15/APAJ of 20 January 1938 concerning the prison system in indigenous districts, which allows work to be exacted from persons in preventive detention (this Ordinance not being on the list of legal texts repealed by Ordinance No. 344 of 15 September 1965 concerning prison labour).

The Government previously indicated that these legal texts were obsolete and were therefore, de facto, repealed. Furthermore, replying to the Committee’s request to repeal these texts formally in order to guarantee legal certainty, the Government indicated that legal certainty was not compromised by the lack of any formal repeal of these texts. The Committee notes the Government’s indication in its report of June 2011 that the promulgation of the Act for the eradication of forced labour will provide an answer to the concerns of the Committee as regards the repeal of Act No. 76-011 concerning the national development effort and its implementing order, as well as Ordinance No. 15/APAJ of 20 January 1938 concerning the prison system in indigenous districts. The Committee hopes that, on the occasion of the adoption of the Act for the eradication of forced labour, the legal texts to which it has being referring for many years and which the Government indicates are obsolete and, de facto, repealed, will finally be repealed formally.